MUNISHAMAPPA & ORS. versus STATE OF KARNATAKA on 24 January 2019

[2019] 2 S.C.R. 386

SUPREME COURT REPORTS [2019] 2 S.C.R. 386

[2019] 2 S.C.R.

MUNISHAMAPPA & ORS.

A

v.

STATE OF KARNATAKA

(Criminal Appeal Nos. 96-97 of 2011)

BJANUARY 24, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDVINEET SARAN, JJ.]

Criminal Law– Appeal against acquittal – Long-standingdispute between families of two brothers, accused no.5 (sinceCdeceased) and CW-29 in regard to ancestral property – Litigationensued – Officials from the Survey Department came to conductsurvey of the property – Altercation between the two families– Surveyofficials left the scene – Later, the accused persons returned to thescene, armed with lethal weapons and assaulted the family ofDcomplainants – ‘KR’ and ‘KE’, sons of CW-29 died – Trial courtacquitted eleven accused persons tried for offences inter aliau/ss.143, 148, 323, 324 and 302 r/w s.149, IPC – High Court allowedthe appeal in part and convicted ten accused persons-appellantsinter alia u/s.304 Part I r/w s.149, IPC – On appeal, held: In case ofappeal against acquittal, such as the present one, the High CourtEshould not interfere with an order of acquittal merely because twoviews are possible – Only when the appreciation of evidence by theTrial Court is capricious or its conclusions are without evidencethat the High Court may reverse order of acquittal – PW-1 (daughterof ‘KR’) narrated the manner in which the accused assaulted theFfamily members of the prosecution witnesses, which wascorroborated by other eye-witnesses – Trial court acquitted theaccused persons primarily on the ground that the injuries on theaccused persons (except accused no.2) was not satisfactorilyexplained – Pellet injuries suffered by accused no.3 were traceableto the bomb blasts caused by bomb carried by accused no.2 whichGexploded in the course of the incident – Injuries suffered by accusednos.4 and 5 were simple – None of the persons in the family of thecomplainant were armed – It was the accused’s side which was armedwith weapons and explosives – Judgment of the High Courtconvicting accused nos.1-4, 6-8 and 11 u/s.304 Part I affirmed –HSentenced to undergo ten years rigorous imprisonment – No consistent deposition with respect to accused nos.10 and 12, theyare given benefit of doubt and acquitted– Penal Code,1860– ss.143,148, 323, 302, 324, 304 Part I r/w s.149 – Explosive SubstancesAct, 1908– ss.3, 4 and 5.

Long-standing dispute between the families of two brothers,accused no.5 and CW-29 with regard to their ancestral property.Litigation ensued. On the date of the incident, at about 8:30 a.m.,officials from the Survey Department came to conduct survey ofthe property. After the house of CW-29 was surveyed, theyproceeded to the house of accused no. 5, who opposed the survey.Altercation took place between ‘KR’, one of the son of CW-29and accused no. 5. Survey officials left the scene. Later on, theaccused returned to the scene, armed with lethal weapons. Caseof the prosecution that accused no.1 assaulted ‘KR’ with dagger.His brother ‘KE’, who was standing near him, was stabbed byaccused no. 3. Both, ‘KR’ and KE’ died. Trial court acquittedeleven accused persons tried for offences inter alia u/ss.143, 148,323, 324 and 302 r/w. s.149, IPC. High Court allowed the appealin part and convicted ten of the accused-appellants u/s.304 Part Iread with Section 149, IPC. Hence, the present appeals.

Disposing of the appeals, the Court

Conclusion

Disposing of the appeals, the Court

HELD: 1.1 In case of an appeal against acquittal, as thepresent case, the High Court will not interfere with an order ofacquittal merely because it opines that a different view is possibleor even preferable. The High Court should not interfere with anorder of acquittal merely because two views are possible. It isonly where the appreciation of evidence by the Trial Court iscapricious or its conclusions are without evidence that the HighCourt may reverse an order of acquittal. The High Court may bejustified in interfering where it finds that the order of acquittal isnot in accordance with law and that the approach of the Trial courthas led to a miscarriage of justice. The High Court, however,must be satisfied that the incident cannot be explained except onthe basis of the guilt of the accused and is inconsistent with theirinnocence. [Para 14] [399-C-E]

1.2 PW 1 narrated the course of the incident and the mannerin which the other accused had assaulted the members of the A

BCD

E

F

G

H

Afamily of the prosecution witnesses. The account of the incidentfurnished by PW 1 has been corroborated in the testimonies ofthe other eye-witnesses. [Para 15] [400-A, C-D]

1.3 The evidence of PW 20, the doctor noted the injurieswhich were sustained by accused No. 2. These injuries were dulyBexplained in the evidence of the prosecution witnesses as havingbeen sustained when the bomb which accused No. 2 was carryingexploded in the course of the incident. The injuries sustained bythe other accused were evidently simple injuries. The pelletinjuries suffered by accused No. 3 were traceable to the bombblasts caused by accused No. 2. The injuries suffered by accusedCNos. 4 and 5 were of a simple nature. [Para 19] [404-G; 405-B-C]

1.4 The judgment of the Trial court suffers from a manifestperversity. The Trial court at one stage, adverted to the injuriessustained by the four accused persons as “fatal injuries” ignoringthat there had been no death in the course of the incident on theDside of the accused. At other places in the course of the judgment,the Trial court opined that the injuries were severe. Here again,there was an evident and manifest error on the part of the Trialcourt in failing to notice that the pellet injuries which weresustained by accused No. 3 were a result of the explosion of theEbomb which had been handled by accused No.2. The other injuriessustained by the accused were relatively of a minor nature. It hasemerged on the record that in the cross complaint which wasfiled by the side of the accused, the police, after investigation,submitted a B summary report which was accepted by theMagistrate. [Para 20] [405-D-E]F

1.5 The principal basis on which the Trial court acquittedthe accused is contrary to the evidence on the record. Theevidence on the record is indicative of the followingcircumstances:

G(i) As a result of the incident, two persons – ‘KE’ and ‘KR’suffered homicidal death in the family of the complainantand as many as six persons were injured;

(ii) None of the persons in the family of the complainant werearmed;

(iii) On the contrary, it was the side of the accused which cameto the house of the complainant armed with weapons andexplosives;

(iv) The injury sustained by the two deceased persons wereon vital parts of the body namely, lungs and kidney; and

(v) After the initial altercation took place at 10:30 am and thesurvey officers had left the location, the accused returnedarmed with lethal weapons and during the course of theincident caused serious injuries on Krishnappa andKenchappa resulting in their death.

The judgment of the Trial Court proceeded on the basis ofsurmises. The Trial court hypothesised that since the deceasedwas 6 ft. in height and accused No. 1 was 5 ft. in height, the injuries,if caused by a dagger, would have been slanting and not verticalin nature. This has completely ignored the vital aspects of themedical evidence on the record. The contradictions which theTrial court adverted to in the evidence of PWs 3 and 4 were notof a nature that should result in discrediting the entire case ofthe prosecution. [Para 21] [405-F-H; 406-A-D]

1.6 The High Court was fully justified in reversing thejudgment of acquittal, having due regard to the parameters whichgovern the exercise of its jurisdiction in an appeal againstacquittal. The High Court was correct in coming to the conclusionthat the provisions of Section 149, IPC stand attracted. Twoelements are crucial to the definition of Section 149, IPC: (i) theoffence must be committed by a member of an unlawful assembly;(ii) the offence must be committed in prosecution of the commonobject of that assembly or must be such as the members of thatassembly knew to be likely to be committed in prosecution ofthe common object. Once a common object of an unlawfulassembly is established, it is not necessary that all persons whoform the unlawful assembly must be demonstrated to havecommitted the overt act. The common object is ascertained fromconsidering the acts of its members and on the basis of allsurrounding circumstances. In the present case, the commonobject within the meaning of Section 149 is evident from the A

B

C

D

E

F

G

H

Agenesis of the incident, the manner in which the accused returnedafter the initial altercation armed with lethal weapons and thenature of the injuries which were inflicted in concert. [Para 22][406-E, G-H; 407-A-B; 408-B]

1.7 The finding of the High Court that the conviction mustBbe based on the provisions of Section 304 Part I of the Code, notinterfered with. However, the sentence which has been imposedby the High Court should be enhanced to ten years rigorousimprisonment. The judgment of the High Court convicting accusedNos. 1, 2, 3, 4, 6, 7, 8 and 11 of the offence under Section 304Part I is accordingly affirmed. The conviction under Section 324Cread with Section 149 of the Code is affirmed. There is noconsistent deposition with respect to accused Nos. 10 and 12.They are given the benefit of doubt and stand acquitted.[Para 23] [408-D-E]

Amar Malla v. State of Tripura (2002) 7 SCC 91 ;StateDof M P v. Ramesh (2005) 9 SCC 705 : [2004] 6 Suppl.SCR 152 ;Raghubir Singh v. State of Rajasthan(2011) 12 SCC 235 : [2011] 10 SCR 739; SikandarSingh v. State of Bihar (2010) 7 SCC 477 : [2010] 8SCR 373 ; Sanjeev Kumar Gupta v. State of UttarEPradesh (2015) 11 SCC 69 : [2015] 5 SCR 122 ;Ramachandran v. State of Kerala (2011) 9 SCC 257 :[2011] 13 SCR 923 – relied on.

Lakshmi Singh v. State of Bihar (1976) 4 SCC 394 ;Mijazi v State of UP AIR 1959 SC 572 : [1959] Suppl.FSCR 940 ;Masalti v State of U.P. (1964) 8 SCR 133– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 96-97 of 2011.

B

From the Judgment and Order dated 14.09.2010 of the High Courtof Karnataka at Bangalore in Criminal Appeal No. 468 of 2004 c/w.Criminal Revision Petition No. 61 of 2004

With

C

Criminal Appeal Nos.995-996, 622, 1362-1363 of 2011.

V. Krishnamurthy, Sr. Adv., Shekhar G. Devasa, Manish Tiwari,Luv Kumar, M/s. Devasa & Co., T. Harish Kumar, V. N. Raghupathy,Somiran Sharma, M/s. Devasa & Co., Advs. for the appearing parties.

The Judgment of the Court was delivered by D

DR. DHANANJAYA Y CHANDRACHUD, J. 1. By ajudgment dated 31 October 2003, the Principal Sessions Judge, Kolaracquitted eleven persons who were tried for offences under Sections143, 148, 323, 324 and 302 read with Section 149 of the Indian PenalCode 1860 (“penal code”) and Sections 3, 4 and 5 of the ExplosiveSubstances Act 1908. The State challenged the order of acquittal in acriminal appeal while the injured complainant assailed the acquittal in acriminal revision. By its judgment dated 14 September 2010, the KarnatakaHigh Court allowed the appeal in part and convicted ten of the accused(accused Nos 1 to 4, 6 to 8 and 10 to 12 before the Trial Court) ofoffences punishable under Section 304 Part I read with Section 149 ofthe Penal Code and sentenced them to rigorous imprisonment for a periodof seven years each. Further, each of them was convicted under Section324 read with Section 149 of the Code and sentenced to suffer rigorousimprisonment for a period of one year with a fine of Rs.5000/- and indefault, to suffer simple imprisonment for three months.

EF

G

2. In these proceedings, three sets of criminal appeals have beenfiled by the ten accused.[1] The original complainant, PW 1 has filed a 1 Criminal Appeal Nos. 995-996 of 2011 is by accused Nos. 6, 10, 11 and 12. CriminalAppeal No. 1362 of 2011 is by accused Nos. 1 to 3 and Criminal Appeal Nos. 96-97 of2011 is by accused Nos. 4, 7 and 8.

H

Acriminal appeal[2] primarily against the judgment of the High Courtfinding the accused guilty under Section 304 Part I read with Section149 instead Section 302. A plea for enhancement of sentence wasalso made.

3. The genesis of the incident, as it emerges from the evidence, isBthat Gopalappa and Bachappa (accused No. 5 since deceased) werebrothers. They were living separately. Accused No. 1 (Venkatesappa),accused No. 2 (Nagappa), accused No. 3 (Dhanegowda), accusedNo. 4 (Munishamappa), accused No. 6 (Lakshmana), accused No. 7(Shekar), and accused No. 8 (Srinivasa) are sons of accused No. 5.CAccused No. 10 is the wife of accused No. 2, while accused No. 12 isthe wife of accused No. 1. The daughter of accused No. 1, Bhagayamma(accused No. 9) was tried as a juvenile. The family tree of the accusedappellants is depicted below:

D

E

F

G

H

2 Criminal Appeal No. 622 of 2011

The family tree on the side of the prosecution witnesses is depictedbelow for the sake of clarity:

4. Kenchappa and Krishnappa, who died a homicidal death, werethe sons of Gopalappa (CW 29). There was a dispute between Gopalappaand his brother Bachappa (accused No. 5) and a civil litigation overseveral decades had ensued amongst them in regard to their ancestralproperty. The relationship between the families was strained and theywere not on talking terms. A vacant site separates the houses of CW 29and accused No. 5.

5. On 15 March 1995, at about 8:30am, officials of the SurveyDepartment, including PW 19 visited Nallappanahalli village for a surveyof the houses. The survey of the house belonging to accused No. 5 wascompleted. Between 10 am and 10:30 am, the survey officials came tosurvey the house of CW 29. At that stage there was a verbal exchangebetween accused No. 5, Krishnappa and CW 29, during the course ofwhich, accused No. 5 sought to prevent survey of the house of CW 29on the ground that there was a dispute in regard to the property in thecivil court. There was an altercation between the two sides as a resultof which the survey officials left the location. Subsequently, at around12 noon, the accused came to the house of CW 29, allegedly armed withdeadly weapons including a baku, knife, cycle chain and explosives.The case of the prosecution is that accused No. 1 assaulted Krishnappawith a dagger. Accused No. 6 assaulted him with a cycle chain. As aresult, Krishnappa sustained severe injuries and collapsed on the ground.

A

B

C

DE

F

G

H

AKenchappa, who was standing near Krishnappa was assaulted with aknife in the stomach by accused No. 3. Accused No. 2 was handling anexplosive, which he threw on the road which injured Sriramappa. Afterexploding the bomb, accused No. 2 tried to run away but in that attempt,he fell and the bomb which he was carrying in his pocket, exploded. Asa result of this, he sustained injuries. The case of the prosecution is thatBaccused No. 4 assaulted CW 29. Accused No. 6 assaulted Krishnappawith a cycle chain. Accused Nos. 7 and 11 assaulted PW 7 while accusedNo. 8 assaulted CW 4 with a cycle chain. A role is sought to be ascribedto three women i.e. accused Nos. 10, 11 and 12 from the family who arealleged to have assaulted the side of the complainants with clubs. BothCKenchappa and Krishnappa died as a result of the injuries suffered bythem in the incident.

6. The First Information Report (FIR) was lodged by PW 1 Rani(the complainant) at 14:15 hours on the date of the incident at the Malurcircle police station. The prosecution examined twenty five witnesses inDorder to establish its case. The defence of the accused was of totaldenial. The complainant was examined as PW 1. PWs 3, 5, 6 and 7 areinjured witnesses. They, together with PW 1, are crucial eye-witnesseson which the case of the prosecution has turned. PW 20 - Dr K Srinivasanexamined the injured prosecution witnesses as well as the injuredaccused. PW 20 also conducted the post-mortem.E7. The Trial court acquitted all the accused of the charge of havingcommitted the murder of the two deceased. After evaluating the evidenceof the prosecution witnesses, the Trial court observed thus:

“A careful perusal of the cross-examination of PW 4 Anjanappa,FPW 5 Srirammappa, PW 6 Govindappa, PW 7 Bhagyamma, PW8 Krishnappa and PW 13 Shivamma clearly demonstrates thatthe accused persons did not come to their house armed with deadlyweapons. It was only after hot exchange of words started betweenA1 and the deceased Krishnappa, then the remaining accusedpersons stated to have entered the scene of offence. However,Gthe evidence of these witnesses uniformly indicates that A1 stabbedwith a baku on the right shoulder of Krishnappa and A6 hit with acycle chain on the back of deceased Krishnappa. A3 stabbedwith the knife on the abdomen of Kenchappa, it pierced towardshis back. Further it is also uniformly states A2 hurled a hand bomb,it exploded, due to which PW5 Sriramappa sustained injuries.H

When A2 tried to run, he fell into the roadside ditch. Another handbomb, which he was holding, exploded and therefore A2 himselfsustained injuries on both the thighs. In this way it is stated by allthese witnesses that deceased Krishnappa and deceasedKenchappa were murdered by these accused persons.”

However, the Trial Court came to the conclusion that the accusedwere entitled to acquittal for the following reasons :

(i) The evidence of PW 20 indicated that accused Nos. 2, 3, 4 and5 had sustained injuries in the course of the incident. Theinjuries which were sustained by the accused were severe innature. This indicates that the incident had taken place in thecourse of a free fight between the families of Gopalappa andBachappa;

(ii) Except for explaining the injury which was sustained byaccused No. 2, PWs 1 to 8 and 13 gave no explanation as tohow the injuries were sustained by accused Nos. 2 to 4;

(iii) A cross complaint by accused No. 4 to the Malur PoliceStation against PW 3 was registered as Crime No. 112 of 1995in which a B-final report was submitted in 1999 to the JMFC,Malur. The prosecution has not explained the circumstances inwhich the B summary report was submitted;

(iv) In the absence of an explanation by the prosecution witnessesof the injuries sustained by the accused, their evidence “losescredence” and an inference must be drawn that theprosecution witnesses have suppressed the truth;

(v) The evidence of PW 20 Dr K Srinivasan indicates that the injurysustained by Krishnappa extended from the left loin to the lowerborder of right scapula. Since the deceased was 6 feet in height,if he was hit with a weapon like MO 5 by accused No. 1 whoseheight was 5.1 feet, the nature of the injury would not havebeen slanting but vertical;

(vi) The Investigating officer had not collected the bloodstainedearth for analysis;

(vii) While the case of the prosecution is that Krishnappa was stabbedwith a knife, what has been seized was a baku or dagger whichis stated to have been used to stab him, which was marked asMO 5; and A

B

C

D

E

F

G

H

A(viii) CW 29, who was one of the eye-witnesses, had not beenexamined. Besides, there were certain contradictions in theevidence of PW 3 and PW 4.

8. The High Court, in the course of its judgment, adverted to theprinciples which it was required to follow in an appeal against acquittal,Bformulating them in the following terms :

“1. In an appeal against acquittal, the Appellate Court would be slowin reversing the judgment of the Trial court unless miscarriage ofjustice has thereby ensued.

2. The Appellate Court would not interfere with the order of acquittalCeven if, based on the evidence on record two views are possibleand the view taken by the Trial court is equally plausible.

3. If the Appellate Court finds that the appreciation of evidence bythe Trial court is without evidence or capricious or against theinterest of justice, then only the Appellate Court would venture toDreverse the order of acquittal.

4. If after appreciation of the evidence, the Appellate Courtindependently finds that order of acquittal is not in accordancewith law and the conclusion arrived at by the Trial court are notbased on the correct appreciation of the evidence on record, andEthe incident cannot be explained except with the guilt of theaccused and is totally inconsistent with the innocence of theaccused, in such cases only the Appellate Court would reversethe order of acquittal.”

9. After analyzing the evidence on the record, the High CourtFheld that the version of PW 1 specifically mentions the presence oflethal weapons and the presence of explosive substances in the hands ofaccused No. 2. Moreover, it was specifically stated that accused No. 2was injured, as the explosive substances in his custody exploded as hewas fleeing. In the view of the High Court, the evidence of the injuredeye-witnesses namely PWs 3, 5, 6, and 7 adverted to the overt acts ofGeach of the accused. PWs 2, 4, 8 and 13 were eye-witnesses to theincident. The evidence of the injured eye-witnesses could not be lightlybrushed aside. The High Court noted that none of the injured witnesseswere armed with any weapons at the time of the offence. On the otherhand, the accused were in possession of weapons including baku, knife,H

cycle chain and clubs. Hence, it was proved that the accused had takenpart in the incident on the date of the offence and had caused the deathof two persons and injuries on four others. As regards the alleged failureof the prosecution to explain the injury on the accused, the High Courtnoted that the FIR adverts to the injury sustained by accused No. 2. Asfar as the other injured accused were concerned, the police filed a B-report, which was accepted by the Magistrate and had not been pursuedfurther by the accused. While reversing the acquittal of the accused, theHigh Court nonetheless noted that there was an age old enmity betweenthe side of the accused and the family of the deceased, as a result ofwhich a quarrel took place and the offence cannot be regarded as havingbeen committed with an intention to cause the death of the deceased.The High Court held that having regard to the nature of the weapons intheir custody, the accused would have the knowledge that their actswould cause the death of Kenchappa and Krishnappa. Hence, theconviction was ordered under Section 304 Part I, besides the convictionunder Section 324, both read with Section 149.

10. Assailing the judgment of the High Court, Shri V Krishnamurthy,learned Senior Counsel appearing on behalf of the accused appellantsurged the following submissions:

(i) In an appeal against acquittal, the High Court has not found thejudgment of the Trial court to be either perverse or resulting in amiscarriage of justice. The presumption of innocence gets fortifiedby the acquittal of the accused by the Trial court;

(ii) The High Court has transgressed the settled principles whichgovern an appeal against acquittal; and

(iii) The evidence indicates that accused Nos. 2, 3, 4 and 5 wereseriously injured during the course of the incident. Except for theexplanation of the injury sustained by accused No. 2, theprosecution has failed to explain the injuries caused to the rest ofthe accused persons. This constitutes a serious omission whichcasts a doubt on the theory propounded by the prosecution. Thedecision of this Court in Lakshmi Singh v State of Bihar[3](Lakshmi Singh) governs the field on the basis of which the accusedare entitled to acquittal.

A

B

C

D

E

F

G

A11. On the other hand, learned counsel appearing on behalf of theState urged the following submissions:

(i) The judgment of the Trial court is primarily founded on the hypothesisthat the injuries sustained by the accused were not explained. Ofthe four injured accused, the evidence elaborately explains thatBaccused No. 2 was injured while handling the explosive substanceswhich he was carrying;

(ii) As regards the injuries sustained by the other accused, they arerelatively of a minor nature. Besides, the judgments of this Courtsubsequent to the decision in Lakshmi Singh (supra)which isCrelied upon by the accused appellants, indicates that the prosecutionis not bound to explain every injury, if any, sustained by the accusedand the decision must turn on the facts and circumstances includingthe nature of the weapons which the accused were carrying;

(iii) The judgment of the Trial court suffers from a clear perversity ofDapproach. Besides the manifest error in appreciating the legalposition as adverted to above, the Trial court has failed completelyto assess correctly the clear and cogent accounts of the injuredeye-witnesses; and

(iv) The injured eye-witnesses and PW 1 have furnished a consistentEaccount of the nature and genesis of the incident and the role ofeach accused. The High Court was, in these circumstances,entirely justified in reversing the judgment of acquittal.

12. Supporting the submissions which have been urged on behalfof the State, Mr Shekhar G Devasa, learned counsel appearing for theFcomplainant PW 1 submitted that:(i) Except for the evidence of PW 1, the Trial court did not correctlyevaluate the nine eye-witnesses including the four (PWs 3, 5, 6and 7) who were injured;

(ii) The subsequent decisions of this Court have clarified the positionGin law and it is now well settled that the question as to whetherthere was a failure on the part of the prosecution to explain theinjuries sustained by the accused must be evaluated in the contextof the nature of the injuries, the weapons wielded by the accusedand all relevant facts and circumstances; H

(iii) The present case in fact does not warrant the application ofSection 304 Part I and a clear case of an offence under Section302 of the Code has been made out; and

(iv) The High Court had correctly applied the provisions of Section149 of the Code and a common object emerges on the basis ofthe evidence on the record.

13. The rival submissions now fall for analysis:

14. The High Court in the present case was dealing with an appealagainst acquittal. In such a case, it is well settled that the High Courtwill not interfere with an order of acquittal merely because it opines thata different view is possible or even preferable. The High Court, inother words, should not interfere with an order of acquittal merely becausetwo views are possible. The interference of the High Court in suchcases is governed by well established principles. According to theseprinciples, it is only where the appreciation of evidence by the Trial Courtis capricious or its conclusions are without evidence that the High Courtmay reverse an order of acquittal. The High Court may be justified ininterfering where it finds that the order of acquittal is not in accordancewith law and that the approach of the Trial court has led to a miscarriageof justice. The High Court, however, must be satisfied that the incidentcannot be explained except on the basis of the guilt of the accused andis inconsistent with their innocence.

15. In the present case, PW 1, who is the daughter of Krishnappa,deposes that there was a long-standing dispute between the families ofthe two brothers: Bachappa (accused No.5) and Gopalappa (CW 29).Litigation ensued. On the date of the incident, at about 8:30 am, theofficials from the Survey Department came to conduct a survey. Afterthe house of CW 29 was surveyed, they proceeded to the house ofaccused No. 5, his brother. Accused No. 5 intervened to oppose thesurvey at which stage a heated exchange of words took place betweenKrishnappa and accused No. 5. In view of the verbal altercation, thesurvey officials left the scene. Later on, before noon, the accused returnedto the scene, armed with lethal weapons. PW 1 deposed that accusedNo. 1 stabbed her father Krishnappa and accused No. 6 assaulted himwith a cycle chain. As a result, Krishnappa collapsed in a pool of blood.His brother Kenchappa, who was standing near him, was stabbed by A

B

C

D

E

F

G

H

Aaccused No. 3 as a result of which, his intestines came out. PW 1 narratedthe course of the incident and the manner in which the other accusedhad assaulted the members of the family of the prosecution witnesses.Accused No. 2 was holding a bomb and threw it on the road in front ofthe house of CW 29, as a result of which the eyes, face and hands ofSriramappa were burnt. After exploding the bomb, accused No. 2Battempted to flee from the scene. At this stage, another bomb whichwas in his pocket exploded, as a result of which he suffered injuries.Following the incident, at 12 noon the two deceased were transported ina bullock-cart for admission at Malur hospital. The remaining injuredpersons were also taken to the hospital. PW 1, together with her maternalCaunt, walked to the Malur police station to lodge the complaint. Theweapon of offence namely, baku was recovered and marked as MO 5.The account of the incident furnished by PW 1 has been corroborated inthe testimonies of the other eye-witnesses. Among them, PWs 3, 5, 6and 7 are injured eye-witnesses.

D16. Along with PW 1, PWs 2 to 8 and 13 have deposed thatKrishnappa stabbed Kenchappa on his right shoulder with a baku. PWs1 to 7 and 13 deposed that accused No. 2 hit CW 25 on her right arm/shoulder with a knife. PWs 1 to PW 8 and PW 13 testified that accusedNo. 2 threw a bomb on the road which exploded, causing injuries to PW

5. They have also testified that accused No. 3 stabbed Kenchappa, onEhis stomach with a knife, in such a manner that it protruded out of hisback. It was further stated that accused No. 3 stabbed CW 29 in theabdomen with a knife and assaulted PWs 3, 6 and 7 with a knife. PWs1, 4, 5 and 6 deposed that accused No. 4 assaulted CW 29 on the backwith a club. PW 7 deposed that accused No. 4 hit her on the back withFa club. PWs 1, 2, 3, 5, 6 and 13 deposed that accused No. 6 assaultedKrishnappa with a cycle chain. PWs 1, 4, and 5 have deposed thataccused No. 7 assaulted PW 7 with a club. PWs 1, 3, 4 and 13 deposedthat accused No. 8 hit PW 3 on his back with a cycle chain. PWs 3 and4 deposed that accused No. 11 had a club and PWs 1, 2, 5 and 7 deposedthat accused No. 11 assaulted CW 26 with a club. There is no consistencyGin the deposition against accused Nos. 10 and 12. PW 1 deposed thataccused No. 10 hit CW 29. PW 4 deposed that accused No. 10 had aclub and PW 2 deposed that accused No. 10 hit CW 4 and CW 26 witha club. PW 1 deposed that accused No. 10 kicked CW 29 with the foot.PW 1 deposed that accused No. 12 hit CW 29 and PW 4 deposed thatHaccused No. 12 hit CW 25 with a club.

17. PW 20 Dr Srinivasan examined these injured eye-witnesseson the date of the incident. His evidence indicates the nature of theinjuries to be as follows:

“PW 3 : Dhanegowda

1. An irregular 1 c.m. cut injury superficial over the left deltoid(shoulder).

2. A contusion of 3"x ½” over medial aspect of left scapula.

3. An irregular contusion of 7" x ½” running across from the top ofright scapula to left loin.

4. An ½” length clean cut injury by scalp depth over vertex.

5. Another contusion 2 ½ x ½” over left chest.”

“PW 5 : Sriramappa

1. A clean cut injury over vertex 1 ½ “ x scalp depth.

2. An irregular wound 1’ x superficial depth over left bizen.

3. A contused abrasion of 1.5 c.m. above both medial end of eye-brows.

4. 4-5 pellet injuries over the chest.

5. A clean cut injury across left thigh 1" superficial depth.”

“PW-6 : Govindappa

1. A clean cut injury 1" in length to the left of 3-9 vertebra cuttingthe erecto spine longitudinally to the left the midline.”

“PW-7 : Bagayamma

1. ¾” superficial cut injury over dorsum of right hand wrist.

2. 1 c.m. superficial cut injury diskful to it.

3. Tenderness over left buttock.”

PW 20 opined that the injuries on the body of the injured personsmay be caused by means of a knife or a baku, the contusion caused byclubs and the irregular injuries by means of a cycle chain. Venkatamma(CW 25) and CW29 were included among other members of the familywhose injuries were examined by PW 20.

A

B

C

D

E

F

G

H

A18. PW 20 conducted the post-mortem of the body of Krishnappawhich revealed external and internal injuries. He deposed thus:

“..On examination I found the following external injuries:

1. An interrupted long contused abrasion of 10" x ½” extendingfrom left loin to the lower border of right scapula lateral end.B

2. A penetrating clean cut injury of 1 1/2" x ½” width is seen overthe mid right supra scapula force with inverted edges verticallywith tilling edge below.

The above injuries are antemortem in nature.

C

On dissection of the chest a vertical clean cut 1 ½” x ½” injurypresent over the mid right supra scapular area with a tailing leftedge with everted edges seen inside with 200 ml. of blood in theright hemithorax. Right lung is shrunken.

Lung:- A clean cut vertically over the abical segment of right lung.DRight upper lob has a penetrating injury which has extended uptothe medial segment of middle lobe cutting the branchiol, veils andarteries.

The other parts of the body were intact and pale.

I am of the opinion that the death was a result of peripheralEcirculatory failure due to haemorrhage as a result of injury to thelung. I have issued PM report vide Ex.P.16. Ex.P.16(a) is mysignature.

The injuries found on the body of deceased Krishnappa can becaused by means of weapon like MO 5.”F

Similarly, the post-mortem examination of the body of Kenchappaby PW 20 revealed the following injuries:

“1. A vertical clean cut perforating injury with inverted edges 2”lateral and above the umbilicus of 1 ½” x ½” gape is present withG1" contusion of lateral inferior angles of the wound through which10" of small intestine has come out. The injury has perforated thetomentum. The ascending colon and descending part of duodenumand ¼” in length. The exit wound is present on the back 1 ¾”lateral to midline and has cut in transverse pro cess of L1 vertebraand is 1" in length with ½” gape and has everted edges.

H

The all the injuries are anti mortem in nature.

On internal examination of the abdomen perforating wound presentas described above. Peritoneum and tomentum has beenperforated.

Duodenum in its descending part has been pierced and is ¼” inlength anterior to right kidney. The ascending part has been piercedand it is one quarter inch in length anterior to right kidney.

A liter of blood is seen in the abdominal cavity in left flank.

Right kidney has been cut through and through at the junctionwith hylum, measures ¼” in length.

All other parts of the body were intact and normal and pale. Ihave issued the PM report vide Ex.P.17. Ex.P.17(a) is my signature.

I am of the opinion that the death was as a result of Shock, MassiveHaemorrhage due to injury to vital organ Kidney.”

Krishnappa had suffered serious injuries to his lungs and themedical evidence indicates that he died due to circulatory failure.Kenchappa had suffered injuries on his kidney and died as a result ofshock and haemorrhage.

19. The Trial court, as we have noted earlier, was persuaded despitethis state of the evidentiary record to acquit the accused primarily on theground that the injuries on the accused (except accused No. 2) had notbeen satisfactorily explained. In Lakshmi Singh (supra), a two judgeBench of this Court held thus:

“12...Indeed if the eyewitnesses could have given such graphicdetails regarding the assault on the two deceased and DasainSingh and yet they deliberately suppressed the injuries on the personof the accused, this is a most important circumstance to discreditthe entire prosecution case. It is well settled that fouler the crime,higher the proof, and hence in a murder case where one of theaccused is proved to have sustained injuries in the course of thesame occurrence, the non-explanation of such injuries by theprosecution is a manifest defect in the prosecution case and showsthat the origin and genesis of the occurrence had been deliberatelysuppressed which leads to the irresistible conclusion that theprosecution has not come out with a true version of the occurrence”

A

B

C

D

E

F

G

H

AThe decision in Lakshmi Singh has been considered in a laterjudgment of this Court in Amar Malla v State of Tripura[4]. A two judgeBench this Court held thus:

“9...From the nature of injuries said to have been received bythese accused persons, it would appear that the same were simpleBand minor ones. It is well settled that merely because theprosecution has failed to explain injuries on the accused persons,ipso facto the same cannot be taken to be a ground for throwingout the prosecution case, especially when the same has beensupported by eyewitnesses, including injured ones as well, andtheir evidence is corroborated by medical evidence as well asCobjective finding of the investigating officer.”The same principle has been followed by another Bench of twojudges in State of M P v Ramesh[5 ]where it was held that:

“11...Non-explanation of the injuries sustained by the accused atDabout the time of occurrence or in the course of altercation is avery important circumstance. But mere non-explanation of theinjuries by the prosecution may not affect the prosecution case inall cases. This principle applies to cases where the injuries sustainedby the accused are minor and superficial or where the evidence isso clear and cogent, so independent and disinterested, so probable,Econsistent and creditworthy, that it far outweighs the effect of theomission on the part of the prosecution to explain the injuries.(See Lakshmi Singh v. State of Bihar [(1976) 4 SCC 394 : 1976SCC (Cri) 671 : AIR 1976 SC 2263] ).”

In Raghubir Singh v State of Rajasthan[6], a two judge BenchFof this Court held thus:

“14...each and every injury on an accused is not required to beexplained and more particularly where all the injuries caused tothe accused are simple in nature (as in the present case) and thefacts of the case have to be assessed on the nature ofGprobabilities...”

The evidence of PW 20 notes the injuries which were sustainedby accused No. 2 thus:

4 (2002) 7 SCC 915 (2005) 9 SCC 705H6 (2011) 12 SCC 235

“1. A white blast injury tearing of the skin cub-cutaneous tissueand partly of quadriceps muscle covering almost entire half of leftthigh with profused bleeding a doubtful fracture of left femur.

2. Multiple pellet wounds are present over left inguinal area inlower left iliac area and supra pubic area.”

These injuries have been duly explained in the evidence of theprosecution witnesses as having been sustained when the bomb whichaccused No. 2 was carrying exploded in the course of the incident. Theinjuries sustained by the other accused were evidently simple injuries.The pellet injuries suffered by accused No. 3 were traceable to thebomb blasts caused by accused No. 2. The injuries suffered by accusedNos. 4 and 5 were of a simple nature.

20. On the above state of the record, it is abundantly clear thatthe judgment of the Trial court suffers from a manifest perversity. TheTrial court at one stage, adverted to the injuries sustained by the fouraccused persons as “fatal injuries” ignoring that there had been no deathin the course of the incident on the side of the accused. At other placesin the course of the judgment, the Trial court opined that the injurieswere severe. Here again, there was an evident and manifest error onthe part of the Trial court in failing to notice that the pellet injuries whichwere sustained by accused No. 3 were a result of the explosion of thebomb which had been handled by accused No. 2. The other injuriessustained by the accused were relatively of a minor nature. That apart,it has emerged on the record that in the cross complaint which was filedby the side of the accused, the police, after investigation, submitted a Bsummary report which was accepted by the Magistrate.

21. The principal basis on which the Trial court acquitted theaccused is contrary to the evidence on the record and suffers from amanifest perversity. The evidence on the record is indicative of thefollowing circumstances:

(i) As a result of the incident, two persons – Kenchappa andKrishnappa suffered homicidal death in the family of thecomplainant and as many as six persons were injured;

(ii) None of the persons in the family of the complainant were armed; A

B

C

D

E

F

G

A(iii) On the contrary, it was the side of the accused which came tothe house of the complainant armed with weapons such as baku,knife, cycle chains and explosives;

(iv) The injury sustained by the two deceased persons were on vitalparts of the body namely, lungs and kidney; andB(v) After the initial altercation took place at 10:30 am and the surveyofficers had left the location, the accused returned armed withlethal weapons and during the course of the incident caused seriousinjuries on Krishnappa and Kenchappa resulting in their death.

Besides the perversity in the judgment of the Trial Court notedCearlier, it is evident that the judgment proceeded on the basis of surmises.The Trial court hypothesised that since the deceased was 6 ft. in heightand accused No. 1 was 5 ft. in height, the injuries, if caused by a dagger,would have been slanting and not vertical in nature. This has completelyignored the vital aspects of the medical evidence on the record. TheDcontradictions which the Trial court adverted to in the evidence of PWs3 and 4 were not of a nature that should result in discrediting the entirecase of the prosecution.

22. For these reasons, we have come to the conclusion that theHigh Court was fully justified in reversing the judgment of acquittal,Ehaving due regard to the parameters which govern the exercise of itsjurisdiction in an appeal against acquittal. Having regard to the facts andcircumstances of this case, we are of the view that the High Court wascorrect in coming to the conclusion that the provisions of Section 149 ofthe Code stand attracted. Section 149 reads thus:

F“Section 149. Every member of unlawful assembly guilty ofoffence committed in prosecution of common object —If an offence is committed by any member of an unlawful assemblyin prosecution of the common object of that assembly, or such asthe members of that assembly knew to be likely to be committedin prosecution of that object, every person who, at the time of theGcommitting of that offence, is a member of the same assembly, isguilty of that offence.”The provisions of Section 149 have been explained by this Courtin Mijazi v State of U P[7] and in Masalti v State of U.P[8]. Two 7 AIR 1959 SC 572H8(1964) 8 SCR 133

elements are crucial to the above definition: (i) the offence must becommitted by a member of an unlawful assembly; (ii) the offence mustbe committed in prosecution of the common object of that assembly ormust be such as the members of that assembly knew to be likely to becommitted in prosecution of the common object. Once a common objectof an unlawful assembly is established, it is not necessary that all personswho form the unlawful assembly must be demonstrated to have committedthe overt act. The common object is ascertained from considering theacts of its members and on the basis of all surrounding circumstances.In Sikandar Singh v State of Bihar[9], this Court heldthus:

“17. A “common object” does not require a prior concert and acommon meeting of minds before the attack. It is enough if eachmember of the unlawful assembly has the same object in viewand their number is five or more and that they act as an assemblyto achieve that object. The “common object” of an assembly is tobe ascertained from the acts and language of the memberscomposing it, and from a consideration of all the surroundingcircumstances. It may be gathered from the course of conductadopted by the members of the assembly. For determination ofthe common object of the unlawful assembly, the conduct of eachof the members of the unlawful assembly, before and at the timeof attack and thereafter, the motive for the crime, are some of therelevant considerations. What the common object of the unlawfulassembly is at a particular stage of the incident is essentially aquestion of fact to be determined, keeping in view the nature ofthe assembly, the arms carried by the members, and the behaviourof the members at or near the scene of the incident. It is notnecessary under law that in all cases of unlawful assembly, withan unlawful common object, the same must be translated intoaction or be successful.”

In a more recent decision in Sanjeev Kumar Gupta v State ofUttar Pradesh[10], this Court held that a common object does not alwaysrequire a prior concert and it may form even on the spur of the moment.In taking this view, this Court relied on the earlier decision inRamachandran v State of Kerala[11 ]and held thus:

9 (2010) 7 SCC 47710 (2015) 11 SCC 6911(2011) 9 SCC 257

A

B

C

DEF

G

H

408SUPREME COURT REPORTS

A“32. In this case all the accused were very well known to thewitnesses. So their identification, etc. has not been in issue. Astheir participation being governed by the second part of Section149 IPC, overt act of an individual lost significance.”

In the present case, applying the same rationale, we are of theBview that the common object within the meaning of Section 149 is evidentfrom the genesis of the incident, the manner in which the accused returnedafter the initial altercation armed with lethal weapons and the nature ofthe injuries which were inflicted in concert.

23. Having carefully considered the submission which has beenCurged on behalf of the complainant, we are not inclined to interfere withthe finding of the High Court that the conviction must be based on theprovisions of Section 304 Part I of the Code. In coming to this conclusionand affirming the view of the High Court, we have based ourselves onthe background of the dispute, circumstances in which the incident tookplace and all the surrounding circumstances. However, we are of theDview that the sentence which has been imposed by the High Court shouldbe enhanced to ten years rigorous imprisonment. We accordingly affirmthe judgment of the High Court convicting accused Nos. 1, 2, 3, 4, 6, 7,8, and 11 of the offence under Section 304 Part I. However, they aresentenced to undergo rigorous imprisonment of ten years. The convictionEunder Section 324 read with Section 149 of the Code is affirmed. CriminalAppeal No. 622 of 2011 filed by the complainant is partly allowed inthese terms. There is no consistent deposition with respect to accusedNos. 10 and 12. They are given the benefit of doubt and stand acquitted.

24. Criminal Appeal Nos. 995 and 996 of 2011 are partly allowedFin these terms. Criminal Appeal Nos. 1362-1363 of 2011 and 96-97 of2011 shall accordingly stand dismissed. Accused Nos. 1, 2, 3, 4, 6, 7, 8and 11 shall surrender forthwith to serve the sentences imposed. A copyof the judgment shall be forwarded in addition to the Chief JudicialMagistrate to secure compliance.

G

Divya Pandey

Appeals disposed of.

H